Decision
Mr A and Dublin City Council
From Office of the Information Commissioner (OIC)
Case number: OIC-101571-B5P3Z6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-101571-B5P3Z6
Published on
Whether the Council was justified in its decision to redact certain property identification information from site inspection reports of homeless accommodation facilities under sections 30(1)(b), 30(1)(c), 36(1)(b), 36(1)(c) and/or 37(1) of the FOI Act
10 January 2025
In a request dated 7 September 2020, the applicant’s colleague sought copies of site inspection reports carried out at emergency homeless accommodation in 2019 and 2020. He also sought copies of all emails and other correspondence in relation to such site visits with the Department of Housing, Planning and Local Government (the Department). In a decision dated 2 October 2020, the Council refused the request in full. It refused access to site inspection reports on the basis of sections 30(1)(b), 30(1)(c), 36(1)(b) and 36(1)(c) of the FOI Act. It refused access to emails and other correspondence under section 15(1)(a) of the Act on the ground that the records requested do not exist.
On 9 October 2020, the applicant sought an internal review of the Council’s decision on his colleague’s request. In later correspondence with this Office, the applicant said the initial request was made by his colleague but that the Council agreed that he could proceed with the application for internal review. In its internal review decision dated 6 November 2020 and addressed to the applicant, the Council affirmed its refusal of the request. On 17 December 2020, the applicant applied to this Office for a review of the Council’s decision.
While the review commenced, it was subsequently suspended pending the outcome of a High Court case concerning a request for records held by the Council relating to homeless accommodation services, given the similarity in subject matter. Judgment in the High Court case was adjourned generally pending two Supreme Court judgments. By consent, the case which had been before the High Court was remitted to this Office for fresh consideration, following which our review in this case recommenced. Given the length of time that had passed since the original request, the Investigator contacted the applicant in February 2024 and sought confirmation as to whether he wished the review to proceed. The applicant confirmed that he wished the review to proceed.
During the course of the review, it transpired that the Council had provided the applicant with redacted versions of the site inspection reports in 2021. Copies of the redacted versions that had been released were provided to this Office for the purposes of the review. The vast majority of the information in the records in question has been released. However, the Council has withheld information including the names and addresses of accommodation and certain details relating to staff members.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the parties. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The Council identified 85 records as coming within the scope of the request. Records 1 and 2 comprise parts of a blank Service Level Agreement and these were released in full. The remaining records comprise site inspection reports and these have been released with redactions.
The Council originally refused access to the site inspection reports on the basis of sections 30 and 36 of the FOI Act. It relied on section 15(1)(a) in respect of the applicant’s request for certain correspondence. In his request for internal review and in his application to this Office, the applicant’s submissions focused solely on the first part of his request, for access to site inspection reports. He made no reference to the Council’s reliance on section 15(1)(a) and its stated position that correspondence records with the Department do not exist. As such, the Investigator understood the scope of this review to be limited to the Council’s refusal of part 1 of the applicant’s request. She wrote to the applicant outlining her understanding and invited him to make submissions on the matter. She noted that if she did not hear from the applicant by a certain date, she would proceed on the above understanding. No submissions were received. As such, I am satisfied that the review is limited to the first part of the applicant’s request, for access to site inspection reports.
Records 3 to 16 relate to accommodation provided by Non-Governmental Organisations (NGOs), while records 17 to 85 relate to Private Emergency Accommodation (PEA) facilities. In the versions of the part-granted records provided to this Office, the names of the NGO providers were redacted. However, the Council subsequently confirmed that this information was released to the applicant where it appeared throughout the records. As such, I do not need to consider the information further.
During the course of the review, the applicant confirmed that he was happy to limit the scope of the review to identifying information relating to the emergency accommodation which is the subject of the relevant site inspection report, i.e. the property name/address/location. As such, I do not need to consider the other limited redactions made to the records.
In its submissions to this Office, the Council also sought to rely on section 37(1) to withhold information relating to the locations of emergency accommodation.
Accordingly, this review is concerned solely with whether the Council was justified in its decision to withhold the property identification information that has been redacted from the records relating to the emergency accommodation on the basis of sections 30(1)(b), 30(1)(c), 36(1)(b), 36(1)(c) and/or 37(1) of the FOI Act.
Before I address the substantive issues arising, I wish to make a number of preliminary comments. First, it is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner’s satisfaction that its decision was justified. This means that the onus is on the Council to satisfy this Office that its decision to refuse access to the information at issue was justified.
Second, it is important to note that a review by this Office is considered to be “de novo”, which means that in this case, it is based on the circumstances and law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of section 37, a mandatory exemption, notwithstanding the fact that the provision was not relied upon as a ground for refusing access to the records in the Council’s initial decisions on the request.
Third, throughout its submissions the Council referenced the perspective of the Dublin Region Homeless Executive (DRHE). The DRHE is provided by the Council as the lead statutory local authority in the response to homelessness in Dublin. It adopts a shared service approach across South Dublin County Council, Fingal County Council and Dún Laoghaire-Rathdown County Council. References to the Council in this decision include references to the DRHE where relevant.
Finally, while the original and internal review requests were made by different individuals, I note that they are colleagues in a national broadcaster and the Council progressed the internal review notwithstanding the fact that it was made by the applicant. While the FOI Act provides that an application for internal review can be made by the requester to whom the original decision issued, I am satisfied that it is appropriate to progress the review given the circumstances of the case and the fact that the Council has raised no objections and indeed issued an internal review decision addressed to the applicant. I note that in its submissions to this Office, the Council referred to the request as having been made by both individuals.
Section 22(6) of the FOI Act requires the Commissioner to notify certain specified parties of his proposal to review a decision of an FOI body, including “any other person who, in his opinion, should be notified.” Section 24 of the Act provides that a party to a review or any other person affected by a decision of the Commissioner may appeal against that decision to the High Court on a point of law. Section 22(10) requires the Commissioner to notify his decision to any person to whom, in his opinion, it should be notified. Any person who would be affected by his decision should be notified, thus giving the person an opportunity to exercise his/her rights under section 24. Thus, a guideline for deciding whether or not to notify a third party under section 22(6) is whether that person is likely to be affected by the decision of the Commissioner. I have carefully considered whether any other parties should be notified of the review and be provided with an opportunity to make submissions.
The information at issue in this case is simply the identification details of the properties that were the subject of site inspections. The substantive details of the inspections have already been released, as have the details of the NGOs where relevant. Having regard to the nature of the information at issue, to the arguments advanced by the Council, and to the information already released, I am satisfied that it was not necessary to notify the providers of the review, regardless of whether they were provided by NGOs or privately.
I note that the Council’s submissions primarily focus on the privacy rights of those accessing emergency accommodation. I have also considered whether any such individuals should be consulted as part of this review. It is important to note that the records at issue do not directly contain information about any identifiable individuals; no individuals experiencing homelessness are named or referenced. However, where information may not, on the face of it, be about an identifiable individual, it may still be personal information if it allows the individual to be identified. I will consider this further in my analysis in respect of section 37 below. In respect of consultation, however, the fact that no individuals are directly referenced in the records makes if difficult, if not impossible, to determine who should be notified. Given that homelessness is often a temporary state with people accessing emergency accommodation services for differing lengths of time, it is not clear to me how potentially affected individuals could be identified for the purpose of consulting with them. Even if it was possible to determine which individuals had accessed the relevant accommodation, I do not believe that it would be feasible for this Office to engage in consultation at that scale. I considered whether any representative organisations exist which could be consulted to provide input on behalf of individuals and households experiencing homelessness. However, those experiencing homelessness are not a homogenous group and I am not confident that an organisation could be identified that would be able to speak on behalf of the individuals the Council claims will be affected by release.
Accordingly, I have notified no third parties of the review in this case and believe that this decision addresses all relevant arguments made concerning all potential third party concerns.
The records at issue comprise site inspection reports. As noted above, records 3 to 16 relate to accommodation provided by NGOs, while records 17 to 85 relate to PEA facilities. The NGO and PEA site inspection reports are formatted differently, with the former containing considerably more detail.
In its submissions, the Council said that all NGO accommodation is subject to a Service Level Agreement (SLA). It said that accommodation provided by PEA providers is subject to a contract signed by the local authority and the service provider. It said that as part of the function of the DRHE, it conducts the inspection visits and monitors the outcome. It said that the PEA service visits are conducted by DRHE staff members. It said that the visits are unannounced and that it is a requirement of the contract that regular service/inspection visits are carried out. It said that the NGO reports relate to inspections under the National Quality Standards Framework (NQSF). It said that the inspections take place across all NGO services and that compliance with the inspections forms part of the SLA with the DRHE.
Section 30(1) of the FOI Act protects certain records relating to the functions of FOI bodies. The Council is seeking to rely on subsections (b) and (c) in support of its refusal to release the information at issue.
Section 30(1)(b) of the Act provides for the refusal of a request where the FOI body considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). Where an FOI body relies on section 30(1)(b), it should identify the function relating to management concerned and it should identify the significant adverse effect on the performance of that function which is envisaged. The FOI body must then make an assessment of the degree of significance attaching to the adverse effects claimed. Establishing “significant adverse effect” requires stronger evidence of damage than the “prejudice” standard in section 30(1)(a) and other sections of the Act. Having identified the significant adverse effect envisaged, the FOI body should then explain how release of the particular information in the records could cause the harm and consider the reasonableness of its expectation that the harm will occur.
A claim for exemption under section 30(1)(b) must be made on its merits and in light of the contents of the particular record concerned and the relevant facts and circumstances of the case. In examining the merits of an FOI body's view that the harm identified could reasonably be expected by the release of records, the Information Commissioner does not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.
Section 30(1)(c) provides for the refusal of a request where the FOI body considers that access to the record concerned could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. It is important to note that this exemption does not contain a harm test (unlike section 30(1)(a) and 30(1)(b)). It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc.
This Office takes the view that an FOI body seeking to refuse access to information under section 30(1)(c) should identify the relevant negotiations at issue. Relevant factors in considering whether there is or was a negotiation include whether the FOI body was trying to reach some compromise or some mutual agreement. The Commissioner also accepts that, generally speaking, proposal-type information relating to a public body's negotiations would also be exempt under section 30(1)(c).
In its submissions, the Council said that the DRHE policy is to not release the names and addresses of the services accommodating households as this could inadvertently publicly identify households as experiencing homelessness against their wishes, causing undue stress. It said that release could also result in “undue prejudice for further negotiations with private contractors/operators to provide emergency accommodation”.
The Council was informed that the onus lies with it to justify its decision and that mere assertions or blanket claims for exemption are generally not sufficient. It seems clear to me that the above submissions constitute mere assertions. No substantive explanations have been provided. The Council has not identified any relevant functions. While it has referenced future negotiations, it has not explained how the release of the information at issue could disclose relevant positions, plans, procedures, criteria or instructions.
The Council’s submissions about the potential stress to households availing of homeless accommodation fall more appropriately for consideration under section 37, which I will consider below. Its argument that release of the identification details of the various properties could prejudice further negotiations with private contractors/operators to provide emergency accommodation is presumably based on a concern that private operators would be less willing to offer their facilities for homeless accommodation purposes if the details of the properties was released. Arguably, if this was to happen, it would impact on the Council’s ability to meet its responsibilities in the provision of homeless accommodation.
It is relevant to note that the vast majority, if not all, of the properties at issue were either provided by NGOs known for providing homeless accommodation or comprise multi-occupancy properties of a type that have openly provided such accommodation in recent years, in light of the enormous accommodation challenges facing the State. I simply do not accept that the disclosure of the identities of properties that were used for homeless accommodation purposes over four years ago could reasonably be expected to have a significant, adverse effect on the performance by the Council of any of its functions. Nor do I accept that release could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations.
In sum, the Council has not shown to my satisfaction that the disclosure of the information at issue could reasonably be expected to have a significant, adverse effect on the performance by the Council of any of its functions relating to management or to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. Accordingly, I find that the Council has not justified its decision to refuse access to the information at issue on the basis of sections 30(1)(b) or 30(1)(c) of the FOI Act.
Section 36(1) protects certain records containing commercially sensitive information. Section 36(1)(b) of the FOI Act provides for the mandatory refusal of a request if the record concerned contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.
The harm test in the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, this Office takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
Section 36(1)(c) provides for the mandatory refusal of a request if the record concerned contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, the Commissioner expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.
When asked to provide submissions in respect of its reliance on the exemption, the Council said that “the DRHE policy is not to release the names and addresses of the services accommodating households experiencing homelessness as it could have an adverse impact on further negotiations with private contractors/operators to provide emergency accommodation and could result in a financial loss for the service providers”. In its decision-making records, the Council said that it was of the opinion that the financial and commercial interest of the service provider would be negatively impacted by the release of the information. It said that it was satisfied that disclosure would prejudice negotiations or the outcome of negotiations with the service provider.
While the Council has referenced the harms which subsections (b) and (c) endeavour to prevent, no attempt has been made to explain how the release of property names and locations could result in those harms. The Council has not explained, or even sought to explain, how release could be expected to have an adverse effect on negotiations with operators or how it could result in financial loss to service providers.
As noted above, the site inspection reports at records 3 to 6 relate to NGO providers and are considerably more detailed than the reports at records 17 to 85. I have considered whether the contents of those records might give rise to section 36 type harms to the relevant third party organisations or to their negotiations. I note that the Council has already released the names of the relevant NGOs, alongside the site inspection findings. All that remains at issue is the identification of the specific accommodation in question. If, for example, the Council had concerns about possible reputational damage to the NGOs as a result of adverse findings contained in the reports, it seems to me that such reputational damage would be likely to stem from the release of the details of the adverse findings in respect of properties run by the NGO in question regardless of the identities of the properties in question. I would add, in any event, that report findings are generally overwhelmingly positive and negative findings appear to be minimal and rectifiable.
In respect of the PEA providers, the information contained in the site inspection reports is much more limited. The findings are largely factual and high-level. They relate to fire safety and whether certain policies and procedures were being followed at the time of the inspection. The owners of the properties are not identified and the only information remaining at issue relates to the location of the accommodation. I do not accept that the release of such information could be expected to result in the harms envisaged by sections 36(1)(b) or (c). Accordingly, I find that the Council has not justified its decision to refuse access to the information at issue on the basis of section 36(1)(b) and/or 36(1)(c) of the FOI Act.
Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 of the Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition.
It is important to note that for information to qualify as personal information for the purposes of the FOI Act, it must be information about an identifiable individual. Where information may not, on the face of it, be about an identifiable individual, it may still be personal information if it allows the individual to be identified. An individual may not be named in a record, yet may still be identifiable.
In its submissions, the Council said that it formed the view that the information withheld is personal data relating to third parties and is therefore subject to section 37(1) of the Act. The Council noted that while the request sought access to information about state funded accommodation which is, in and of itself, not personal information as set out by the Act, its position is that the release of such information will lead to the revelation that persons residing at those addresses are experiencing homelessness. It said that the DRHE and the Council have a duty to treat this information in confidence. It said that the families and individuals accessing homeless accommodation are some of the most vulnerable in our society and that, in a lot of cases, clients have not disclosed their living situation to those around them. The Council said that by releasing the information concerned on foot of the request, and in effect to the world at large, the individuals residing at the premises would be identified as homeless leaving them open to the stigma still associated with accessing such services. It said that this is of particular concern when considering the welfare of the children accessing accommodation and the potential consequences to their wellbeing should their status as homeless be disclosed. The Council said that the information withheld is personal in nature and its release under the FOI Act would be a breach of the confidence owed to the vulnerable families and individuals it assists.
The substantive issue I must consider is whether the release of the withheld information would involve the disclosure of personal information. As noted above, personal information for the purposes of the FOI Act means information about anidentifiable individual (my emphasis) that either would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or is held by an FOI body on the understanding that it would be treated by that body as confidential. Where it is not apparent, an FOI body should explain clearly how the disclosure of the information would allow an individual to be identified.
The information remaining at issue comprises identifying details of properties that were used to provide emergency accommodation in 2019 and 2020. Given the historical nature and content of the records and the temporary nature of emergency accommodation, I am satisfied that the release of the information would not involve the disclosure of details of identifiable individuals who may have resided in any of the properties during the relevant time period. However, this does not appear to be the Council’s primary concern. In essence, its argument appears to be that some of the properties referenced in the records continue to provide emergency accommodation and that release of that information would allow for the identification of the residents as homeless.
In similar reviews which have come before this Office, the Commissioner has considered whether section 37 serves to exempt information relating to historic emergency accommodation records, where there is no information in the records which would allow for the identification of the specific properties that are currently in use. For the avoidance of doubt, there is nothing in the records at issue which discloses whether the accommodation which is the subject of the relevant inspection report is still in use as emergency accommodation. This undermines any argument that release of the information would allow for the identification of current residents as homeless. However, given the nature of the records and accommodation at issue and the scale of the current homelessness crisis, I am willing to accept that at least some of the properties may remain in use. I will therefore consider whether the release of the locations of the properties would involve the release of personal information about an identifiable individual.
The Council has made no substantive submissions as to how it anticipates such identification could occur. In similar cases which have come before this Office, the Council referenced individuals being associated with the relevant address in their workplace, place of education, place of worship or to family and friends. In effect, it seems to be arguing that an individual or household experiencing homelessness might provide, for example, their employer with their current address and that by virtue of the release of the records at issue, that employer would be able to establish that the address provided is homeless accommodation.
While not an express argument advanced by the Council, I have also considered whether the release of the locations of such accommodation could reasonably be expected to result in the disclosure of personal information by virtue of the fact that individuals residing in the locale may deduce or assume that those entering and existing the premises are experiencing homelessness.
While the information at issue is not, on its face, about an identifiable individual, it may still be personal information if is allows the individual to be identified. Whether the release of the details of emergency homeless accommodation would involve the disclosure of personal information relating to identifiable individuals is a close call, in my view. It seems to me that a certain amount of information concerning the likely housing status of the occupants of many of the properties is already widely known. It is often common knowledge that particular properties are being used as temporary accommodation, particularly in the context of NGO providers. Nevertheless, I accept, on balance, that the fact that some of the properties inspected may continue to provide homeless accommodation may not be in the public domain. In such circumstances, I am willing to accept that neighbours and those living in the locality could identify certain individuals as experiencing homelessness though I would again note that this determination is a close one.
I am satisfied that information concerning a person’s housing status meets the definition of personal information in section 2. I accept that it comprises information which would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual. Accordingly, I find that section 37(1) of the Act applies to the information at issue on the ground that its disclosure would involve the disclosure of personal information relating to users of the services in question. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37.
Section 37(2) and 37(5)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply:
(a) subject to subsection (3), the information concerned relates to the requester concerned,
(b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,
(c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
(d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or
(e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.
I am satisfied that subsections (a), (b), (d) and (e) do not apply in this case. In respect of subsection (c), while it could be argued that certain information about the locations of emergency accommodation is in the public domain or known locally, I am not satisfied that the information is available to such an extent that the provision could be found to apply. As such, I am satisfied that section 37(2)(c) does not serve to disapply subsection (1).
Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates. I am satisfied that the relevant individuals whose privacy rights the Council is seeking to protect would not benefit from the release of the information at issue and I find that section 37(5)(b) does not apply.
In considering whether a right of access exists to records under section 37(5)(a), any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.
The Council made submissions in respect of the public interest balancing test. It noted that section 37 and the long title to the Act recognises a very strong public interest in protecting the right to privacy, which has a constitutional dimension. It outlined the factors which it took into account in refusing access to the information at issue. In favour of release, it noted the public interest in ensuring openness and transparency in respect of organisational functions. It referenced the public interest in members of the public exercising their rights under FOI and noted that there is more than just a transitory interest by the public in the information at issue. In favour of withholding the information, it noted the public interest in allowing a public body to hold personal information without undue access by members of the public. It referenced the public interest in the organisation conducting its business in a confidential manner. It said that there is a reasonable and implied expectation that personal information pertaining to vulnerable clients held by the Council will remain confidential. It said that there is no overriding public interest that outweighs the individuals’ right to privacy.
The Council said that its opinion is that the public interest in release if not sufficiently strong to outweigh the public interest in protecting the right to privacy of the individuals to whom the information relates. Its position is that the provision of the partial records satisfies the public interest in the matter. It said that it believes it is justified in not releasing information pertaining to particular addresses used to accommodate families and individuals experiencing homelessness in order to protect the right to privacy of those individuals.
The applicant’s position is that the public interest weighs in favour of release. In his application to this Office, he referenced the public interest in openness and accountability in decision making and good administrative practice. He said that previous cases taken before this Office have led to similar inspection reports being released and made public. He said that nursing home inspection reports and asylum seeker inspection reports are now routinely released. He said that, like those residents, clients in homeless accommodation are similarly vulnerable and “in many cases are unable to exert their own personal rights”. He said that for this reason, there is an extra onus on, and clear public interest in, this type of inspection report being released. He said that clients in homeless accommodation deserve the same standards of transparency, accountability and good administrative practice and that the public has an inherent right to know the outcome of the site inspection reports in question.
The applicant referenced a number of previous decisions made by the Commissioner (OIC-020533, OIC-130165, OIC-16008) and cited findings therein. With reference to nursing home inspection reports and the payment of Exchequer funds to such homes, he cited a previous finding of the Commissioner that “ensuring accountability in respect of this funding constitutes a very significant public interest”. He also quoted the Commissioner as stating that “there is an overriding public interest in ensuring that the health, security and welfare of elderly and vulnerable members of society is seen to be protected by the enforcement by health boards of the relevant legislation”. The applicant said that he would “sincerely argue that homeless individuals are also vulnerable members of society”. With reference to site inspections of asylum seeker accommodation, he cited the Commissioner as stating that “there is a substantial public interest in information about the centres being made available to the public due to the substantial public monies paid out to the proprietors of these centres”.
The applicant also referenced a decision of this Office which concerned documents relating to emergency homeless accommodation (OIC-160047). He said that the Commissioner took the view that “there is a public interest in the proper administration of public contracts and in ensuring that value for money is obtained”. The Commissioner in that case considered that “openness about the expenditure of public funds is a significant aid in ensuring the effective oversight of public expenditure and that the public obtains value for money, and in preventing fraud and corruption and the waste or misuse of public funds”.
In considering whether the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet case"). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and "there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure". Although the Court's comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
Both the language of section 37 and the Long Title to the FOI Act recognise that there is a strong public interest in protecting the right to privacy. The right to privacy also has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
It is worth noting, however, that the protection afforded to privacy rights is a spectrum and can vary depending on, for example, the sensitivity of the information at issue and the extent of the privacy breach. As I have noted above, a certain amount of information concerning the likely housing status of the occupants of many of the properties in question is likely already widely known. Moreover, it seems to me that the current housing crisis is so widespread and so severe that any stigma that might have (wrongly) attached to individuals regarded as homeless in the past has long since significantly diminished. Individuals from all walks of life and from a broad range of socio-economic backgrounds now regularly find themselves in need of accommodation, through no fault of their own. As such, while I accept that the release of information that would allow for the identification of individuals as availing of homeless accommodation services would, indeed, involve the disclosure of personal information, it seems to me that any resultant breach of privacy rights, in the current economic climate, would be less severe than it might otherwise have been in the past.
In addition, I would again note that the records at issue do not directly disclose any personal information. The disclosure of such information is dependent on a third party having the requisite knowledge to be able to identify an individual accessing the accommodation. The Council’s arguments that the release of the information at issue would breach privacy rights are largely based on a concern about inferences that might be drawn about the individuals availing of homeless accommodation services, as opposed to any concrete or certain disclosure of personal information.
Furthermore, it seems to me that the temporary nature of homelessness also serves to limit the extent of any privacy breach. While I am aware that some households can be accommodated in emergency accommodation for significant lengths of time, others access services for much shorter periods. It seems to me that an individual or household residing in homeless accommodation for a number of days or weeks is less likely to be identified. In sum, it seems to me that the weight to be afforded to the right to privacy in this particular case is low, given the inferential nature of the personal information, the temporary nature of homelessness and the fact that it is increasingly better understood, and the extent to which related relevant information is already in the public domain.
On the other hand, there can be no doubt that the issue of homelessness and the measures being taken by the State to address it are of enormous public interest. The housing and homelessness crisis has given rise to a significant and unprecedented reliance on emergency accommodation, much of which is provided by NGOs and by the private sector but paid for by the State. There is a strong public interest in allowing for public scrutiny of how those services are delivered and the quality of same. I note, for example, that the National Quality Standards Framework for Homeless Services in Ireland (NQSF), which was developed by the DRHE on behalf of the Department of Housing, Local Government and Heritage, includes as one of its standards a physical environment that promotes the safety, health and well-being of service users. It seems to me that the release of the records at issue would allow for more detailed scrutiny of how the Council is addressing homelessness and the nature and quality of the services being provided.
It seems to me that there is also a significant public interest in the public knowing that entities involved in the provision of emergency accommodation are operating within the standards imposed by the Council contractually or by virtue of an SLA. There is also a public interest in knowing how public bodies carry out inspections in respect of such accommodation and that their administration of SLAs and contracts is robust.
I would add that while the records at issue in this case do not include financial information, it is relevant, in my view, that the provision of homeless accommodation through the private sector has given rise to significant, unprecedented, levels of public expenditure. The services referenced in the records are State-funded and the amount of public monies that has been expended and continues to be expended on the provision of homeless accommodation is very significant. In the case of Industrial Development Agency (Ireland) v the Information Commissioner [2024] IEHC 649, the Court found the public interest in ensuring the proper management and use of public funds to be a legitimate public interest. While the release of the records at issue will not disclose the amount of public funds involved, its release would certainly allow for scrutiny of how such public funds are being used.
Moreover, the Council acknowledges that individuals and households accessing emergency accommodation may be particularly vulnerable. In that context, it seems to me that secrecy in respect of homeless services carries with it the scope for abuse. Openness in relation to the provision of such services is an important additional safeguard against abuses of all kind. The Irish State has a documented history of institutional secrecy and resultant abuse. As such, there is a strong public interest in openness about State service provision.
Having carefully considered the matter, I am satisfied that any breach of privacy rights arising in this case by the disclosure of the details of the properties at issue would be, at best, minimal, particularly in circumstances where the records are over four years old and give no indication as to whether the properties remain in use as homeless accommodation facilities. On the other hand, I have identified a number of strong public interest factors in favour of release. Accordingly, I am satisfied that the public interest in disclosing the withheld information outweighs, on balance, the public interest in protecting the privacy rights of the individuals concerned. Accordingly, I find that section 37(1) does not serve to exempt the information at issue.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision to withhold the property identification information that has been redacted from the records relating to the emergency accommodation on the basis of sections 30(1)(b), 30(1)(c), 36(1)(b), 36(1)(c) and/or 37(1) of the FOI Act and I direct the release of that information.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator